Constrained by the Liberal Tradition: Why the Supreme Court Has Not Found Positive Rights in the American Constitution

Bentley, Curt, Brigham Young University Law Review

I. INTRODUCTION

A growing number of countries, particularly the so-called "third wave"1 democracies, have given some level of protection for positive rights-those rights requiring affirmative government action for their provision2-in their constitutions.3 America has not yet joined the group of nations embracing the constitutional provision of positive rights,4 and scholars have speculated as to the reasons why.5 The analysis of positive rights and the American Constitution could potentially proceed along two strands. The first strand seeks to explain why Americans have not amended the Constitution to include positive rights. The second strand focuses on why the Supreme Court has not found such rights protected in the existing Constitution itself.6

This Comment fits primarily within the second strand of research efforts, although it offers insights into the first as well, and advances a theory as to why no protection for positive rights currently exists in the American Constitution. It does so by responding to an argument made by Professor Cass Sunstein in The second Bill of Rights.7 Sunstein contends that the primary reason the Supreme Court has not found constitutional protection for positive rights in the American Constitution is essentially a twist of fate in the 1968 election, which resulted in Richard Nixon becoming President of the United States.8 In contrast to the realist explanation advanced by Sunstein, I propose a counter-thesis: that the institutional structure of the American government, combined with America's classically liberal political culture, has prevented the Supreme Court from interpreting such rights into the Constitution. I refer to this throughout this Comment as the "cultural-institutional thesis."

This approach is in contrast to the way other authors have addressed the question of positive rights in the American Constitution, which have either focused on the legal9 or political contexts.10 By focusing on the combination of both, this Comment offers unique insights not only regarding the history of positive rights in America, but also as to their future.

With that in mind, this Comment proceeds as follows. Part II briefly summarizes Sunstein's argument, and provides a brief articulation of the cultural-institutional thesis. Part III discusses classical liberalism in American political culture, using Louis Hartz's controversial classic The Liberal Tradition in America11 as a theoretical guide. Part IV contains a discussion about how the institutional structure of American government operates in conjunction with political culture to constrain counter-majoritarian judicial review, illustrated by specific examples from Supreme Court case law and public opinion data. Part V provides a brief synthesis of the political culture and institutional limitation arguments and applies the cultural-institutional thesis to the question of the constitutional provision of positive rights in America, concluding that the constitutionalization of positive rights will not occur absent a shift in America's classically liberal political culture. Finally, Part VI is a brief conclusion.

II. SUNSTEIN'S ARGUMENT AND THE CULTURAL-INSTITUTIONAL RESPONSE

In The Second Bill of Rights, Sunstein outlines four possible explanations for why the constitutionalization of positive rights has not occurred in America: (1) the chronological explanation, (2) the institutional explanation, (3) the cultural explanation, and (4) the realist explanation.12 Sunstein rejects all but the fourth explanation. This Part first sets forth Sunstein's responses to each possible explanation, followed by an explication of the cultural-institutional thesis.

A. Sunstein's Possibilities

1. The chronological explanation

The chronological explanation for America's failure to constitutionalize positive rights focuses on the fact that the American Constitution predates the idea of state provision of positive rights. …

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